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Michael Ristvey Jr., Nancy K. Ristvey, Husband and Wife; Nedra J. v. Commonwealth of Pennsylvania

July 11, 2012

MICHAEL RISTVEY JR., NANCY K. RISTVEY, HUSBAND AND WIFE; NEDRA J. LEWIS, WIDOW; AND CHESTER B. SCHOLL JR., APPELLANTS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION



The opinion of the court was delivered by: Bernard L. McGINLEY, Judge

Argued: April 16, 2012

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge

HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge

OPINION BY JUDGE McGINLEY

Michael Ristvey, Jr., (Mr. Ristvey) Nancy K. Ristvey, Nedra J. Lewis, and Chester B. Scholl, Jr. (Appellants) appeal from the order of the Court of Common Pleas of Mercer County (trial court) which sustained the Preliminary Objections of the Pennsylvania Department of Transportation (DOT) and dismissed Appellants' Petition for Appointment of Viewers.

Appellants owned 23 acres of vacant, residentially-zoned land on the eastern side of Pennsylvania State Route 18 in Hermitage, Pennsylvania (Property). In 2001, the Commonwealth acquired 8,500 square feet of the Property by filing a Declaration of Taking for the purpose of making improvements to Route 18.*fn1 That matter was resolved amicably in 2009.

In the meantime, in the Spring of 2004, Cedarwood Development Corporation (Cedarwood), the owner and developer of the commercial property located on Route 18 directly across from the Property, applied to DOT for a Highway Occupancy Permit (HOP). Cedarwood planned to develop its property for a Wal-Mart Store and sought to reconfigure the five-lane Route 18 to include, inter alia, a new traffic signal and the addition of a dedicated, north-bound, left turn stand-by lane to service the Wal-Mart Store.

Cedarwood's application for the HOP was granted in August of 2004.

In August of 2005, Mr. Ristvey, an attorney, first observed traffic signal equipment on Route 18 in front of the Property. Construction pursuant to the HOP was completed in August 2006. Mr. Ristvey did not contact DOT until three years later in 2009 when he requested a copy of the HOP and the traffic impact study.

On July 29, 2010, Appellants filed a Petition for Appointment of a Board of Viewers and alleged a de facto taking "within the meaning of Article I, Section 10 of the Pennsylvania Constitution and the Fifth and Fourteenth Amendments to the Constitution of the United States." Petition for the Appointment of a Board of Viewers, ¶14 at 4; Reproduced Record (R.R.) at 8a. They claimed that the issuance of the HOP rendered the Property "worthless" because the "stacking" of cars in the newly configured left turn stand-by lane made it impossible, at times, to safely make a left turn out of the Property. They alleged that DOT's actions rendered the Property "worthless" and "deprive[d] the Plaintiffs-Condemnees [Appellants] of the full and normal use and enjoyment of their property." Petition for the Appointment of a Board of Viewers, ¶10 at 4; R.R. at 8a. Appellants also alleged that DOT failed to follow its own regulations*fn2 by failing to "obtain the consent of adjacent and affected property owners in the form of an agreement of release." Petition for the Appointment of a Board of Viewers, ¶5(f) at 3; R.R. at 7a.

DOT filed Preliminary Objections and argued that the issuance of the HOP was an exercise of its police power - not the result of an eminent domain action. DOT argued that the HOP was properly granted pursuant to its statutory and regulatory authority and that Appellants failed to pursue an administrative remedy in a timely fashion by failing to intervene pursuant to 1 Pa. Code §§35.9 and 35.10 and 67 Pa. Code §491.4(a). DOT maintained that the granting of the HOP was "reasonable" and that Appellants failed to show the existence of exceptional circumstances.

The trial court considered the deposition testimony of Mike McMullen (McMullen), DOT's Highway Occupancy Permit Manager. McMullen testified that the HOP was granted because Cedarwood met all the technical conditions of the application. Deposition of Mike McMullen (McMullen Deposition), November 19, 2010, at 47; R.R. at 75a. McMullen testified that there was no formal requirement that DOT issue notice of the issuance of a HOP to adjoining property owners. McMullen Deposition at 43; R.R. at 71a.

McMullen agreed that turning left out of the property may be "a little . problematic" depending on the number of cars in the left turn stand-by lane. McMullen Deposition at 33; R.R. at 60a. He stressed, however, that if Appellants wished to develop the Property they may request a HOP for "right turn in and out" access, which would not be affected by the current left turn stand-by lane. McMullen Deposition at 44; R.R. at 72a. Other properties have successful "right turn in and out," including the Olive Garden Restaurant in Erie County, Primanti Brothers' Restaurant in Grove City, and the Sheetz Convenience Store on Route 18.

Mr. Ristvey also testified via deposition. Mr. Ristvey believed he could not develop the Property "to its full potential" because of the "poor access." Deposition of Michael Ristvey, Jr. (Ristvey Deposition), November 19, 2010, at 7; R.R. at 97a. He believed that the Property "was next to worthless" because "nobody is going to want it for a right turn only location." Ristvey Deposition at 22; R.R. at 112a. Mr. Ristvey admitted that he did nothing when he first learned of the HOP after he observed construction of the traffic signal in 2005. Ristvey Deposition at 8; R.R. at 98a.

In an opinion and order dated May 5, 2011, the trial court sustained DOT's Preliminary Objections and dismissed Appellants' Petition for Board of Viewers. The trial court found that DOT's actions were not an exercise of its eminent domain power which required just compensation. Rather, DOT's grant of the HOP and reconfiguration of Route 18 were valid exercises of its police power, which did not require compensation. Specifically, the trial court found no evidence that DOT acted either capriciously or arbitrarily. DOT received the request of Cedarwood, methodically considered it and investigated its implications on the basis of the available facts. DOT was unaware of plans to develop the Property although DOT inquired about the matter through the local authority. The trial court also found that there were no plans to use the Property in any particular manner that would call into question the positioning of the traffic signal. Despite Mr. Ristvey's unsupported opinion that the Property was now worthless, any impact of the HOP on the Property was speculative. To the extent that Appellants argued that DOT acted unreasonably because it failed to notify them directly about the HOP, the trial court rejected the argument because it was unsupported by any legal authority. According to McMullen, DOT is not required to notify adjoining property owners of the issuance of a HOP.

On appeal*fn3 , Appellants argue that the trial court erred when it dismissed their Petition for Appointment of Board of Viewers. They claim that DOT's purpose in requiring Cedarwood (as a condition of the HOP) to add a left turn, stand-by lane, in front of Appellants' Property, was for the primary and paramount benefit of the traveling public. Therefore, DOT's actions constituted an exercise ...


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